The Supreme Court’s decision to keep the Deferred Action for Childhood Arrivals program alive for now is a victory for hundreds of thousands of unauthorized immigrants who came to the US as children. But it’s a temporary victory — far from the permanent protections they have awaited for nearly two decades.
The unexpected decision may have assured DACA recipients that they can continue to live and work in the US free of fear of deportation for another day. But their victory is, legally speaking, quite narrow, and it gives Trump plenty of leeway to move forward with terminating the program, which has protected some 670,000 DREAMers.
The justices wrote in their opinion that Trump would have to articulate a more robust rationale for terminating the program. He’s already claiming on Twitter that he still wants to end DACA, but it’s not likely that he could do so before the presidential election or even Inauguration Day in 2021.
But if Trump wins a second term, time would be on his side. And even if he leaves office, the only way that DREAMers, including those who have long waited for a chance to apply for DACA, can get assurance of their right to remain in the US is if Congress intervenes.
Given that DACA has been the subject of contentious legislative debate for the better part of a decade, policy experts aren’t hopeful that the next few months leading up to the presidential election will be the time to get it done.
“DACA recipients’ status remains subject to the whims of the executive branch,” Theresa Cardinal Brown, the Bipartisan Policy Institute’s director of immigration and cross-border policy. “It has been that way since 2012. It’s past time.”
Trump can still try to end DACA
Trump suggested Thursday in a tweet that he would not abandon his efforts to end the program:
As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.
— Donald J. Trump (@realDonaldTrump) June 18, 2020
It’s not clear what “start this process all over again” might mean.
One option is for the administration to try again on ending the program the same way it did in 2017: The Department of Homeland Security could issue another memo. Trump could also issue an executive order terminating DACA. But either method would likely be challenged and blocked swiftly in federal court, said Stephen Yale-Loehr, a professor at Cornell Law School. Whether, and how quickly, the administration could defend its policy on appeal remains an open question.
The justices wrote in their opinion that if they wanted their decision to survive in the courts, the administration would have to address why it decided not to partially roll back protections for DACA recipients — such as taking away their work authorization but still shielding them from deportation. It’s not clear whether the Trump administration has any interest in more narrowly revoking their protections, but even so, it would be devastating for DREAMers to lose their ability to work in the US.
The administration would also have to address why the interests of DACA recipients, who have relied on the program since 2012, do not outweigh the administration’s interests in terminating the program. DACA recipients have been settled in the US for years — some arriving before they were old enough to remember — and have earned degrees and established careers and families here. The Trump administration, on the other hand, has expressed concern that DACA could face litigation because it alleges the program was created illegally via executive action.
Alternatively, the administration could try terminating DACA via the regulatory process, which would put termination on stronger legal footing. But the entire process could last months, if not years, requiring that officials draft and issue a proposed rule, solicit comments from the public, and address those comments before publishing a final rule.
“Neither alternative is likely to terminate the DACA program before the presidential election in November,” Yale-Loehr said. “This makes the election even more important than before. If President Trump wins reelection, he will have another four years to try to terminate the DACA program.”
Former Vice President Joe Biden, the presumptive Democratic nominee for president, has said that, if he is elected, he would reinstate DACA and send a bill to Congress offering a pathway to citizenship for DREAMers.
The big question now: Will the Trump administration start accepting new DACA applications?
About 66,000 people have become eligible for DACA since 2017, when the Trump administration stopped accepting new applications for the program amid ongoing court challenges. Those young immigrants have been waiting for their chance to apply for the program, but it’s not clear whether the Trump administration will resume accepting new applications now that the Supreme Court has ruled.
US Citizenship and Immigration Services, the agency that handles DACA applications and renewals, will have to issue guidance as to how it intends to implement the Supreme Court’s ruling. The agency declined to comment on its intentions Thursday.
California Attorney General Xavier Becerra, who helped argue the DACA case before the Supreme Court last fall, told the Washington Post that “anyone who qualifies as a DREAMer under DACA should be allowed to be in the program.”
In the meantime, immigration attorneys are nevertheless advising that people who are eligible for DACA — namely, those born after 1981 who arrived in the US before they turned 16, do not have a disqualifying criminal conviction, and are either in school or the military or who have graduated from high school — submit their applications.
There is pressure on Congress to act, but the ball is in Trump’s court
Democrats have long fought for permanent protections for DREAMers, dating back to the first version of the DREAM Act introduced in 2001. Such measures remain widely popular on a bipartisan basis; even 69 percent of Trump voters support protections for DREAMers, according to a recent Politico/Morning Consult poll. But time and time again, related bills have reached a familiar impasse: Democrats insist on a clean bill offering DREAMers protections while Republicans demand stricter border security measures in return.
Trump’s next move will likely dictate the urgency of the ongoing policy debate in Congress.
“If the administration sits on this, Congress wouldn’t have impetus to act because the program will continue to exist,” Cardinal Brown said. “If he starts the process of ending DACA all over again, then that does put some pressure on Congress, particularly if majorities in Congress want to see DACA recipients maintain status.”
It’s not clear yet what Trump might demand in return for permanent protections for DACA. Since he announced his decision to terminate the program in 2017, he has already brought to fruition many of his policy priorities on immigration, including funding for the border wall, restrictions on legal immigration, and a near-complete shutdown of asylum on the southern border. Additional restrictions on immigration might be a tough pill for Democrats to swallow.
Democrats might also be tempted to wait until after the presidential election to return to the negotiating table if Trump delays acting on DACA, Cardinal Brown said. If Biden wins the presidency, more palatable opportunities to bargain with Republicans may open up in the lame-duck session.
Senator Dick Durbin, a Democrat and longtime advocate for DREAMers, didn’t appear hopeful that Congress could pass permanent protections for DREAMers in the coming months, urging Trump on the Senate floor Thursday to give Congress time “to do our part.”
“I’m calling on the president and those around him — I beg them — let’s give these DACA protectees till the end of this year … till after the election,” he said.
In the meantime, Democratic leaders are pushing preexisting proposals to help DREAMers.
“We’re celebrating today, but tomorrow we’ll keep fighting for permanent protections for Dreamers,” Joaquin Castro, chairman of the Congressional Hispanic Caucus (CHC), said in a statement Thursday. “The Supreme Court ruling is a wake-up call for congressional action by the Senate. … President Trump broke his promise to protect Dreamers, and I fully expect his administration to enact more cruelty.”
The Dream and Promise Act, which the Democrat-controlled House passed in June 2019, is chief among Democrats’ priorities. It offers a pathway to citizenship for about 2.5 million DREAMers and other immigrants with temporary legal status (the original DREAM Act was narrower, covering about 1.5 million people). Senate Majority Leader Mitch McConnell has said he is unlikely to allow a vote in the Republican-controlled chamber.
The CHC is also asking the Senate to vote on the latest coronavirus relief package, known as the Heroes Act, which would provide an automatic extension for DACA recipients’ work permits. Many DACA recipients have been deemed essential workers, with 27,000 of them treating patients on the front lines of the pandemic as health care practitioners or medical support staff.
But these proposals have little hope of passing in the Republican-led Senate right now.
“I’m still very nervous for these DACA recipients because it’s not over,” Cardinal Brown said. “I think that Congress always breathes a sigh of relief when a hot potato political issue is punted, but it’s not buying them that much time.”